SafeWork NSW v PRW Services Pty Ltd; SafeWork NSW v Peter Whalan

[2024] NSWDC 16

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v PRW Services Pty Ltd; SafeWork NSW v Peter Whalan [2024] NSWDC 16

Hearing dates:

5 February 2024

Date of orders:

13 February 2024

Decision date:

13 February 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In proceedings 2022/346665:

(1)   PRW Services Pty Ltd is convicted.

(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order PRW Services Pty Ltd to pay a fine of $375,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order PRW Services Pty Ltd to pay the prosecutor’s costs.

(6) The Exhibits are returned.

In proceedings 2022/346649:

(1)   Peter Whalan is convicted.

(2)   The appropriate fine is $60,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Peter Whalan to pay a fine of $45,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Peter Whalan to pay the prosecutor’s costs.

(6) The Exhibits are returned.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from height – roof sheet not properly secured – worker fell through roof

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32

Work Health and Safety Regulation 2017 (NSW), cll 78, 79

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Canon Roofing Solutions Pty Ltd [2023] NSWDC 467

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

Australian/New Zealand Standard, Industrial fall-arrest systems and devices, 2009

SafeWork NSW Code of Practice, Managing the risk of falls at workplaces, August 2019

SafeWork NSW Information Sheet, Safe Work on Roofs, January 2016

SafeWork NSW Initial Project Findings, Construction blitz on falls from heights, November 2018

SafeWork NSW Project Findings Report, Falls from heights in construction – blitz 2.0, 1-30 October 2019

SafeWork NSW Safety Notice, Falls through roofs, 4 August 2020

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
PRW Services Pty Ltd (Defendant)
Peter Whalan (Defendant)

Representation:

Counsel:
I Fraser (Prosecutor)
M McAuley (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
C & M Lawyers (Defendant)

File Number(s):

2022/346665; 2022/346649

Judgment

1. On 19 November 2020 workers were carrying out roof rectification works at a site in Moorebank. A roof worker, Mr Troy Irwin, was injured when he fell seven metres through a roof sheet to the ground below.

2. PRW Services Pty Ltd (PRW) has pleaded guilty to an offence that as a person conducting a business or undertaking (PCBU) who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Irwin to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,766,130.

4. Peter Whalan has pleaded guilty to an offence that as an officer of PRW who had a work health and safety duty pursuant to s 27 of the WHS Act to exercise due diligence to ensure PRW complied with its duty under s 19, he failed to comply that duty and thereby exposed Mr Irwin to a risk of death or serious injury contrary to s 32 of the WHS Act.

5. Section 27 of the WHS Act is as follows:

“27   Duty of officers

(1)  If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2)  Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3)  Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4)  An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5)  In this section, due diligence includes taking reasonable steps—

(a)  to acquire and keep up-to-date knowledge of work health and safety matters, and

(b)  to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c)  to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d)  to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e)  to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example—

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

•  reporting notifiable incidents,

•  consulting with workers,

•  ensuring compliance with notices issued under this Act,

•  ensuring the provision of training and instruction to workers about work health and safety,

•  ensuring that health and safety representatives receive their entitlements to training.

(f)  to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).”

6. The maximum penalty for the offence is a fine of $353,430‬.

The Risk

7. The risk described in par 12 of the PRW Summons and par 14 of the Whalan Summons is as follows:

“The risk was the risk of workers, in particular Mr Irwin, suffering death or serious injury from falling from height whilst accessing and/or working on the roof, including on the rear awning roof at the site.”

Reasonably Practicable Measures

8. Paragraph 13 of the PRW Summons pleads particulars of PRW’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“13. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of the workers, in particular Mr Irwin, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a. Undertaking an adequate site-specific risk assessment prior to workers gaining access to the roof and in particular the rear awning roof, which identified the hazards and risks associated with working on the roof, assessed the risks, and determined the most effective control measures to manage the risks; and/or

b. Developing, implementing and maintaining a safe method of work for gaining access to and working on the roof, in particular the rear awning roof, which:

(i) prohibited workers walking on brittle or fragile or poorly secured roofing materials.

(ii) provided for the use of a harness-based restraint system to be attached to temporary anchor points.

(iii) provided for the installation of barriers around any part of the roof identified as brittle, fragile or with poorly secured roof sheets and signage or markings warning of the risks of stepping on such a section of the roof; and/or

c. Develop or ensure, so far as reasonably practicable, that Canon develop and/or revise upon receipt of further relevant information an adequate Safe Work Method Statement prior to work commencing upon the roof including the rear awning roof which:

(i) specified the hazards and associated risks to safety on the rear awning roof;

(ii) Identified the most appropriate control measures that should be implemented to control the risk(s) at the site, such as those identified in paragraph 13 (b);

d. Implement and enforce an adequate Safe Work Method Statement which addressed the matters identified in paragraph 13(c); and/or

e. Instructing workers, and in particular Mr Irwin, not to work on the rear awning roof unless a fall arrest harness was worn at all times and was attached to temporary anchor points; and/or

f. Requiring or directing that workers on the rear awning roof, in particular Mr Irwin, to wear a fall arrest harness at all times which was attached to temporary anchor points: and/or

g. Adequately supervising workers in particular Mr Irwin to confirm that work on the roof was stopped immediately if work was being performed on the rear awning roof without workers wearing fall arrest harness that was attached to temporary anchor points; and/or

h. Providing and installing barriers around any roof sheet that was not fixed by screws and/or erecting signage or markings warning of the risks of stepping on the roof sheet that was not fixed by screws; and/or

i. Providing information, training, and instruction to workers about the risks associated with the work on the rear awning roof and the measures to be implemented to manage the risks, so far as reasonably practicable.”

9. Paragraph 15 pleads that Mr Whalan failed to comply his duty under s 27(1) because he failed to exercise due diligence to ensure that PRW complied with its duty under s 19(1) by taking the measures particularised in the preceding paragraph. Paragraph 16 pleads the particulars of the reasonable steps Mr Whalan should have taken in exercising due diligence as follows:

“16. The reasonable steps the defendant should have taken in exercising due diligence included one or more of the following:

a. Requiring, instructing or directing the company to prepare, implement and/or revise when necessary a safe method of work which addressed the matters identified in paragraph 15 (b); and/or

b. Requiring, instructing or directing the company to prepare, implement and/or revise when necessary, a Safe Work Method Statement which adequately specified the hazards and risks to safety associated with those hazards on the rear awning roof; and/or

c. Raising with Canon the hazards and associated risks to safety on the rear awning roof prior to the commencement of work on the rear awning roof; and/or

d. Requiring, instructing or directing the following, and/or verifying that the company required, instructed or directed the following by making enquiries and/or observing operations at the site, that it occurred:

(i) workers engaged by the company, in particular Mr Irwin, wore fall arrest harnesses attached to temporary anchor points while working on the rear awning roof; and/or

(ii) the company's worker(s) working on the roof without the use of fall arrest harnesses attached to temporary anchor points be prohibited, and that work by the company's worker(s) on the roof was to be stopped immediately if performed without the use of a fall arrest system; and/or

e. Requiring, instructing or directing the company to have in place a process for the provision of information, instruction and training to workers performing work in their business or undertaking at the site on the rear awning roof and the measures to be implemented to manage the risks; and/or

f. Verifying, by· enquiries, site observation or inspection of documentation, that one or more of the resources and processes listed at 15(a) to 157(c} above were provided, implemented, and used by workers when undertaking work on behalf of the company.”

Background

10. The parties presented an Agreed Statement of Facts which is summarised below.

11. PRW’s business or undertaking was the installation and rectification of roofing. Mr Whalan was the sole director and secretary.

12. On or about 3 September 2020 Johns Lyng Insurance Building Solutions (NSW) Pty Ltd (Johns Lyng) engaged Canon Roofing Solutions Pty Ltd (Canon) to carry out rectification works at a site in Moorebank (the site). Mr Byron Burke is the director of Canon.

13. In September 2020 Canon entered into an oral agreement with PRW for PRW to carry out the rectification works at the site. PRW engaged workers under subcontract, including Mr Irwin, to carry out the work. Mr Irwin was a metal roof labourer who had previously worked with Mr Whalan and had been engaged by PRW from time to time since 2017.

14. On or about 25 September 2020 PRW commenced work at the site. Mr Whalan was site supervisor.

15. On or about 10 November 2020 Johns Lyng varied the scope of the rectification works to include the rear awning roof at the site. At Canon’s request, PRW was responsible for carrying out the additional work, which included the removal and replacement of 15 roof sheets and tidying up the open flashings.

16. On or about 16 November 2020 PRW commenced the rectification works on the rear awning section of the roof.

The Incident

17. On 19 November 2020 Mr Whalan, Mr Irwin and Mr Jessie Newman (another worker engaged by PRW) were removing roof sheets from the rear awning and preparing four replacement sheets.

18. Prior to work on the rear awning, Mr Whalan lifted the apron flashing. He states that this was done in the presence of Mr Irwin and Mr Newman. Mr Whalan saw that the roof sheet was not fixed to the top purlin with screws and that the apron had been riveted using a sealant and adhesive. Mr Irwin states that his recollection is that nobody discussed with him that the roof sheet was not fixed to the top purlin and he was unaware of that fact. The prosecutor conceded that Mr Whalan’s statement should be accepted for the purpose of the sentencing hearing (MFI 1, pars 27-28).

19. Mr Irwin was doing work on the main roof. He saw Mr Whalan moving replacement sheets on the rear awning roof and walked over to assist him. In doing so, he stepped on the roof sheet that was not fixed with screws and fell through the sheet about seven metres to the ground. Mr Irwin had been standing more than three metres from the roof edge when he fell.

20. Mr Whalan knew there was no safety mesh installed under the rear awning. Mr Irwin had been provided with a fall arrest safety harness, but Mr Whalan was aware that Mr Irwin was not wearing it on the rear awning roof.

Injuries

21. Mr Irwin sustained multiple fractures to his left and right calcaneus and his left tibia.

Systems of Work Prior to the Incident

Toolbox Talk

22. Prior to the incident an undocumented toolbox talk was conducted by Mr Whalan. There was no discussion about the process of replacing the roof sheets. Mr Whalan had instructed Mr Irwin to wear a fall arrest safety harness when close to the roof edge or where there was a major pitch on the roof.

Pre-start Risk Assessment

23. On or about 16 November 2020 Johns Lyng prepared a pre-start risk assessment, which was sent electronically to Mr Whalan. Mr Whalan completed and signed the pre-start risk assessment on behalf of PRW. Workers engaged by PRW, including Mr Irwin, also signed it.

24. In the pre-start risk assessment Mr Whalan stated that PRW would implement safety harnesses and gloves. He also stated that the roof was structurally sound to walk on; potential or existing hazards had been identified; and the risk of anyone falling from the roof had been assessed.

25. PRW did not conduct a site-specific risk assessment of the risk of falling through the roof. Nor did PRW conduct a site-specific risk assessment following the variation in the scope of the rectification works to include the rear awning.

26. PRW did not identify as risk control measures that workers should be prohibited from walking on brittle, fragile or poorly secured roofing materials, or that workers should wear a safety harness and be attached to a fall arrest system by temporary anchor points when on the roof. This was despite Mr Whalan knowing that there was no safety mesh installed under the rear awning roof.

27. Mr Whalan did not require or ensure that PRW included in the pre-start risk assessment that workers should wear a safety harness and be attached to a fall arrest system by temporary anchor points, at all times when on the rear awning roof.

Safe Work Method Statement

28. On or about 23 September 2020 Canon prepared a Safe Work Method Statement for the rectification works (the SWMS). The SWMS identified Mr Whalan as site supervisor. PRW was responsible under the SWMS for identifying and assessing hazards associated with the rectification works, documenting the hazard control measures and ensuring compliance with work health and safety standards.

29. On or about 25 September 2020 Mr Whalan signed the SWMS as supervisor and Mr Irwin signed the SWMS as a worker.

30. The SWMS included the following control measures:

1. In Item 8 “Working at Heights”:

1. Workers to wear a harness within three metres from gable ends.

2. A fall arrest device for work over 1.8 metres is to be used if required and only as a last resort.

2. In Item 9 “Setting out the work”:

1. All workers within three metres from the roof edge will be attached to a temporary fall arrest system.

3. In Item 12 “As/if required by SOW”:

1. Roofing wire is compliant and no need for a harness unless within three metres of a building edge with a parapet lower than 900 millimetres.

2. Any roofer working within three metres from the gutter is to be attached to an approved fall arrest system.

3. Check the condition of harnesses, ropes and shackles.

31. There was no specific reference to the rear awning in the SWMS. The SWMS did not require workers on the rear awning roof to wear a fall arrest harness at all times or be attached to a temporary fall arrest system by anchor points at all times. Although referred to in the SWMS, there was no roofing wire (ie safety mesh) under the rear awning roof.

32. Neither PRW nor Canon amended or otherwise updated the SWMS, following the variation of the scope of the roofing works, to identify any additional hazards and control measures in relation to the rear awning roof. Mr Whalan did not require or ensure that the SWMS identified all risks and hazards, and the most appropriate control measures to be implemented to control the risks at the site.

Fall Arrest or Prevention Measures

33. No fall protection was in place for workers undertaking work on the rear awning roof. There was no task-specific instruction, information or direction provided by PRW to Mr Irwin requiring him to wear a safety harness attached to a temporary fall arrest system through anchor points when working on the roof generally, on the rear awning roof specifically or in the vicinity of the roof sheet. Mr Whalan did not require or ensure that PRW provided the appropriate instruction, information or direction.

Implementation and Supervision

34. Mr Whalan did not require or ensure that PRW implemented a supervisory process or procedure to stop work if it was being performed on the roof without the use of safety harnesses attached to a temporary fall arrest system.

Signage or Marking

35. Mr Irwin or Mr Newman were not prohibited or otherwise directed not to work on the rear awning roof or the in the vicinity of the unsecured roof sheet unless they were wearing a safety harness and were attached to a temporary fall arrest system. No other signs or other markings were placed at or in the vicinity of the roof sheet to warn workers of the risks of stepping onto the roof sheet.

Guidance Material

The Regulation

36. Clause 78 of the Work Health and Safety Regulation 2017 (NSW) mandates that a PCBU must manage the risk associated with falls from one level to another. Clause 79(3) provides that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by providing a fall arrest system.

Code of Practice

37. The SafeWork Code of Practice “Managing the risk of falls at workplaces” (the Code) was published in August 2019. The Code advises that particular attention should be given to tasks that are carried out on or alongside a fragile surface. The Code recommends reviewing a generic risk assessment if there is a likelihood that a person may be exposed to greater, additional or different risks at the specific work area, and revising fall control measures when a new hazard or risk is identified.

38. The Code highlights the need for protection around holes, penetrations and openings through which a person could fall, including the use of covers and signage. The Code requires that if individual fall arrest systems are not reasonably practicable, then a fall prevention device (such as temporary work platforms or safety mesh to prevent internal falls through a roof) or work positioning system should be used. The Code refers to anchorage points. It also refers to administrative controls, including “no go” areas.

Information Sheet and Safety Notice

39. In January 2016 SafeWork published an Information Sheet titled “Safe Work on Roofs”. It states that protection must be provided if there is a risk of falling through the roof. It identifies control measures such as the installation of safety mesh and a harness system with adequate anchorage points, along with appropriate training and supervision.

40. In November 2018 SafeWork published Initial Project Findings, “Construction blitz on falls from heights”, and later published Project Findings Report 1-30 October 2019, “Falls from heights in construction – blitz 2.0”.

41. On 4 August 2020 SafeWork published a safety notice on its website titled “Falls through roofs”. If sheeting appears brittle, the notice advises installing safety mesh, the use of an adjustable fall-arrest system (such as a harness with proper anchor points) and the preparation of a site-specific SWMS.

Australian/New Zealand Standard

42. In 2009 the Australian/New Zealand Standard “Industrial fall-arrest systems and devices” was published dealing with the selection, use and maintenance of fall arrest systems and devices.

Systems of Work Following the Incident

43. On 20 November 2020 SafeWork issued an Improvement Notice to PRW to review its systems of work and implement appropriate risk controls, which may include the use of a scissor lift and fall restraints.

44. On 26 November 2020 Mr Whalan emailed SafeWork a revised SWMS provided by Canon to Mr Whalan. Item 8 in the revised SWMS required workers to wear a harness while carrying out the rectification works. Item 12 in the revised SWMS had been updated to require that workers be attached to an approved fall arrest system when working within three metres from a gutter.

45. On or about 7 December 2020 Canon prepared a revised SWMS specifically referring to roof sheeting on the rear awning, requiring workers to wear a harness and be attached to a temporary fall arrest system.

Evidence for the Defendants

46. The evidence for the defendants was contained in a Sentence Tender Bundle (DX 1), together with an affidavit from the defendants’ solicitor (DX 2) and a fourth affidavit of Mr Whalan (DX 3).

First Affidavit of Mr Whalan

47. Mr Whalan comes from a family of roofers. He has worked in the roofing industry for most of his life. He worked as subcontractor until 2015 when he commenced his own business and incorporated PRW. If he could not complete jobs by himself, he engaged subcontractors.

48. Mr Whalan has known Mr Irwin for about 20-25 years. Mr Irwin worked for him as a subcontractor. The incident has destroyed their close friendship.

49. Mr Whalan acknowledged that he was at fault, and that he has let Mr Irwin and his family down.

50. Following the incident, Mr Whalan wanted to get out of the roofing industry. He began working as a stevedore but later resigned because he was having problems with sleep and concentration since the incident. In April 2023 while working for his brother, also a roofer, he injured his hand when he slipped from a roof. He has not worked since just before Christmas 2023. He does not consider himself capable of returning to work. At the present time he is financially dependent upon his wife.

51. In oral evidence Mr Whalan said that he intended to go back to work as a stevedore when these proceedings were over and when he could clear his head. He said that he could do work as a stevedore, even with his injured hand. After an initial period of training, he could earn $120,000 gross per annum.

Second Affidavit of Mr Whalan

52. Mr Whalan registered a new company Petwal Services Pty Ltd in September 2022 (Petwal) when he began trading as a subcontractor following resignation from his stevedore role.

53. Mr Whalan annexed to his affidavit:

1. Individual Tax Returns for the 2019 to 2022 financial years.

2. PRW Tax Returns for the 2016 to 2022 financial years.

3. Bank Statements of PRW for the period of July 2021 to January 2024, Bank Statements of Mr Whalan for the period of May 2021 to January 2023 and Bank Statements of Petwal for the period of 27 December 2023 to 26 January 2024.

4. Company searches for PRW and Petwal.

Third Affidavit of Mr Whalan

54. Mr Whalan swore a further affidavit on 1 February 2023 annexing a payment arrangement from iCare in respect of Workers Compensation premium payments.

Fourth Affidavit of Mr Whalan

55. In his fourth affidavit (DX 3), Mr Whalan annexed copies of bank statements for himself, PRW and Petwal.

Affidavit of Amanda Whalan

56. Ms Amanda Whalan swore an affidavit on 30 January 2024. Ms Whalan is married to Mr Whalan. She is employed as a business analyst. She spoke of the mental toll the incident has had on her husband, particularly with respect to his work ethic, sleep pattern and temper.

Character References

57. The defendants tendered several character references for Mr Whalan (DX 1, pp 354, 357, 358, 369 and 370). Some of these references had been written by persons who had been informed of the offending and the nature of the offence. All spoke highly of Mr Whalan and his work ethic.

Report of Mr Borenstein

58. Mr Whalan was sent by his solicitors in these proceedings to see Mr Borenstein, a clinical psychologist. His report dated 13 June 2023 was tendered (DX 1, p 345). Mr Borenstein offered the opinion that Mr Whalan suffered with moderate symptoms of depression and moderate symptoms of Post-Traumatic Stress Disorder (PTSD). Mr Borenstein recommended that Mr Whalan should consult a psychologist of his choosing, to acknowledge and process symptoms of depression and PTSD. In oral evidence Mr Whalan said that he had not sought any treatment, and he could not recall whether or not he was given advice by Mr Borenstein to seek professional help.

59. Mr Borenstein said that Mr Whalan’s presentation was compounded by the criminal proceedings which added to his psychological trauma and were maintaining his symptoms. In oral evidence Mr Whalan gave several answers to indicate that the criminal proceedings had been a stress upon him, and that he hoped to change his employment and deal with his gambling problem, after these proceedings were concluded.

Consideration

60. I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

Objective Seriousness of the Offence

61. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

62. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

63. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

64. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

65. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

66. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

67. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

68. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

69. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

70. My findings about the defendants’ level of culpability are based upon the following:

1. The risk was actually known by the offenders.

2. The likelihood of the risk occurring was quite high. All it took was for a worker to step on the unfixed sheet while distracted or engaged in the task at hand.

3. The potential consequences of the risk were very serious.

4. There were simple and obvious steps available to eliminate or minimise the risk.

5. There was no great burden or inconvenience of implementing those steps.

6. Mr Irwin was very badly injured in the fall and remains unable to work as a result of his injuries.

7. The maximum penalty for the offence for a body corporate is a fine of $1,766,130 and for an officer of a PCBU is a fine of $353,430, which reflects the legislature’s view of the seriousness of the offence.

71. I find that the level of culpability of PRW is in the upper half of the mid range.

72. I find that the level of culpability of Mr Whalan is in the upper half of the mid range.

Deterrence

73. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

74. Specific deterrence has no role to play. PRW is no longer conducting a business. Recent roofing work performed by Mr Whalan has been done through a new company Petwal.

Aggravating Factors

75. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

76. Neither PRW nor Mr Whalan have a previous conviction: s 21A(3)(e) CSP Act.

77. PRW and Mr Whalan are otherwise of good character: s 21A(3)(f) CSP Act.

78. PRW and Mr Whalan are unlikely to re-offend: s 21A(3)(g) CSP Act.

79. PRW and Mr Whalan have shown remorse for the offence: s 21A(3)(i) CSP Act. They have provided evidence that they have accepted responsibility for their actions and have acknowledged that the injury to Mr Irwin was caused by their actions.

80. PRW and Mr Whalan entered pleas of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give PRW and Mr Whalan a 25% discount for their early pleas.

Parity

81. Canon was also prosecuted for a breach of its health and safety duties arising under the WHS Act, relating to the same incident in which Mr Irwin was injured when he fell through the roof: SafeWork NSW v Canon Roofing Solutions Pty Ltd [2023] NSWDC 467.

82. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

83. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

84. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

85. It is appropriate for the court to consider the respective contributions of Canon and PRW. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

86. I find that PRW was more culpable than Canon. PRW, through Mr Whalan, was on the roof. The risk was observed but no appropriate precautions were taken against it.

Capacity to Pay a Fine

87. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

88. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

89. Mr Whalan gave evidence that PRW no longer traded and that he did not intend to trade through that company in the future. Any roofing work done in the last few years has been performed by his new company Petwal. In those circumstances there is no reason to consider reducing the appropriate fine. This is not a case of a small company continuing in operation, where a large fine would have a crippling effect on the business. There is no business.

90. In relation to Mr Whalan personally, I find that there is no reason to reduce the appropriate penalty. Cross-examination upon the most recent bank statement for Petwal (DX 1, p 306) showed that in the last month Petwal had made three payments of $3,500 to Mr Whalan for “wages”. In that same period Mr Whalan had made five ATM withdrawals of $2,000 each, plus a cash withdrawal of $10,000. Initially Mr Whalan said that these withdrawals were for “holidays and cost of living”. In later evidence he somewhat reluctantly admitted to using a lot of the money for gambling. He did say that he had lost $15,000 since last Christmas. Mr Whalan indicated that he intends to seek professional assistance with his gambling habit.

91. It therefore appears that Mr Whalan presently has adequate income and resources to pay an appropriate fine. Further, he gave evidence that when this case is over, he intends to resume the work of stevedoring, where after an initial period he can earn $120,000 gross per annum.

Costs

92. There should be orders that the defendants are to pay the prosecutor’s costs.

Penalty

93. In proceedings 2022/346665 my orders are:

1. PRW Services Pty Ltd is convicted.

2. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order PRW Services Pty Ltd to pay a fine of $375,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order PRW Services Pty Ltd to pay the prosecutor’s costs.

6. The exhibits are returned.

94. In proceedings 2022/346649 my orders are:

1. Peter Whalan is convicted.

2. The appropriate fine is $60,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Peter Whalan to pay a fine of $45,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Peter Whalan to pay the prosecutor’s costs.

6. The exhibits are returned.

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Decision last updated: 13 February 2024